Opinion
Case No. 7:08-cr-030.
March 9, 2009
ORDER
This matter is presently before the court on Defendant Johnmarlo Balasta Napa's Motion to Dismiss. (Dkt. No. 30). On May 22, 2008, the United States indicated Napa on two counts of transmitting a threat to injure the person of another in interstate commerce in violation of 18 U.S.C. § 875(c). Napa now contends that the court should dismiss those charges because the communications referenced in the indictment do not constitute a threat as a matter of law.
Upon review of the existing record, memoranda submitted by the parties, and argument presented at a hearing on March 4, 2008, the court finds Napa's argument unpersuasive. There is substantial evidence to conclude that the communications in question constitute both a "threat," see United States v. Bly, 510 F.3d 453 (4th Cir. 2007) (defining threat to mean a "serious expression of an intent to commit an act of unlawful violence to a particular individual or group"), and a "true threat," see U.S. v. Darby, 37 F.3d 1059, 1066 (4th Cir. 1994) (determined by "the interpretation of a reasonable recipient familiar with the context of the communication[s]"), and thus the court must submit the case to a jury. United States v. Maisonet, 484 F.2d 1356, 1358 (4th Cir. Va. 1973). Accordingly, it is hereby
ADJUDGED AND ORDERED
that Defendant's Motion to Dismiss is DENIED. The Clerk of Court is directed to send a copy of this Order to all counsel of record in this matter.